Carroll v. Otis Elevator Co.

• Decision Date: 09 February 1990
• Docket Number: No. 89-1641,89-1641
• Citation: 896 F.2d 210
• Parties: , 29 Fed. R. Evid. Serv. 625 Shirley CARROLL, Plaintiff-Appellee, v. OTIS ELEVATOR COMPANY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 210

896 F.2d 210

58 USLW 2556, 29 Fed. R. Evid. Serv. 625

Shirley CARROLL, Plaintiff-Appellee, v. OTIS ELEVATOR COMPANY, Defendant-Appellant.

No. 89-1641.

United States Court of Appeals Seventh Circuit.

Argued Oct. 27, 1989.

Decided Feb. 9, 1990.

Mark Glass, Kirby Palmer, Carr, Korein, Schlichter, Kunin & Montroy, East St. Louis, Ill., for plaintiff-appellee.

Harold A. Donovan, Donovan, Rose, Nester & Szewczyk, Richard E. Boyle, Gundlach, Lee, Eggmann, Boyle & Roessler, Belleville, Ill., for defendant-appellant.

Before EASTERBROOK and RIPPLE, Circuit Judges, and ESCHBACH, Senior Circuit Judge.

ESCHBACH, Senior Circuit Judge.

This appeal arises from a diversity action in which a jury found the defendant Otis Elevator Company liable to pay the plaintiff Shirley Carroll damages in the amount of $42,899.51 for personal injuries she sustained while riding on an escalator manufactured by Otis. ¹ As its sole basis for appeal Otis asserts that the trial court abused its discretion in qualifying one of plaintiff's witnesses as an expert. Because the witness was qualified to give testimony which assisted the trier of fact, we affirm.

I.

On September 16, 1985 an unidentified child pushed the emergency stop button of the escalator on which the plaintiff, Shirley Carroll, was riding, causing her to fall and injure her knee. Carroll sued Otis Elevator Company, the manufacturer of the escalator, submitting strict liability in tort as a basis for recovery. The design defect asserted as part of this theory was that the escalator's "emergency stop button was unguarded and unreasonably attractive and operable by children."

In support of this assertion, the plaintiff called James Walker, an experimental psychologist, who testified that: red buttons attract small children, this button was unreasonably easy for a child to push, and that a covered stop button is less accessible to children than an uncovered stop button.

II.

The defendant's sole complaint on appeal is that the trial court abused its discretion in permitting plaintiff's witness, James Walker, to testify as an expert on the subject of escalator design. Walker's testimony is deprecated because he allegedly was permitted to testify outside his area of expertise and because the subject of his testimony was not so distinctively related to some science as to be beyond the ken of the average juror.

Fed.R.Evid. 702 permits the trial court to admit the testimony of "a witness qualified as an expert by knowledge, skill, experience, training, or education" if his expert testimony "will assist the trier of fact to understand the evidence or to determine a fact in issue." The decision to admit expert testimony is committed to the broad discretion of the trial court and its determination will be affirmed unless it is "manifestly erroneous." Bob Willow Motors Inc. v. General Motors, 872 F.2d 788, 797 (7th Cir.1989), citing Liquid Air Corp. v. Rogers, 834 F.2d 1297, 1308 (7th Cir.1987).

A.

Whether a witness is qualified as an expert can only be determined by comparing the area in which the witness has superior knowledge, skill, experience, or education with the subject matter of the witness's testimony. Gladhill v. General Motors Corp., 743 F.2d 1049, 1052 (4th Cir.1984). Though Walker's area of expertise is experimental psychology, which concerns the study of human behavior and experience, his testimony was limited to whether the design features of this allegedly defective escalator stop button would cause young children to push it more than the stop buttons of other escalators. Walker was qualified to opine on this subject because his area of expertise involves human behavior and perception, and his testimony related solely to the attractiveness and accessibility of the stop button to children.

Walker's testimony concerned three basic points. First he testified brightly colored, red objects attract small children. This elevator's red stop button was more brightly colored than others he had observed. Hence he concluded this stop button was more attractive to small children than others. Next he testified that a covered stop button is less accessible to children than this uncovered one. Finally he remarked that the more difficult a button is to push the less readily it is actuated by a small child, concluding that this button was unreasonably easy to push. These opinions were simple observations which required their declarant to have only some limited understanding of a human's visual perception and manual dexterity. Walker, whose specialty is visual perception, was eminently qualified to testify as an expert in this case.

B.

The plaintiff further asserts that even if qualified, Walker's testimony should not have been admitted because the subjects upon which he testified were within the ken of the average juror. Under Rule 702 expert opinion concerning matters about which jurors have general knowledge is admissible if the expert opinion "will assist the trier of fact to understand the evidence or to determine a fact in issue." "When opinions are excluded, it is because they are unhelpful and therefore superfluous and a waste of time." Fed.R.Evid. 702 advisory committee's note citing 7 Wigmore Sec. 1918.

While it is true that one needn't be B.F. Skinner to know that brightly colored objects are attractive to small children and that covered buttons or those with significant resistance are more difficult to actuate by little hands, given our liberal federal standard, the trial court was not "manifestly erroneous" in admitting this testimony and its judgment is accordingly AFFIRMED.

EASTERBROOK, Circuit Judge, concurring.

Those seeking to burlesque modern products liability law could do no better than to examine this case. A department store's clerk gets on the up escalator. Suddenly it stops; because she was not holding the handrail she falls and injures her knee, which requires surgery. Her employer pays for medical care and the reduction in her wages because of time lost from work. In exchange for this assured payment without regard to fault under the workers' compensation law, the employer gets protection from liability in tort. So the clerk sues the manufacturer of the escalator, which does not have the workers' compensation bar, demanding money on account of the pain and suffering that workers' compensation does not recompense. Her theory is strict liability because the escalator's design made it unreasonably dangerous.

The escalator stopped because a prankster pressed the emergency stop button. Bad turn for the day accomplished, he fled and has not been identified. Escalators have stop buttons at each end. When clothing (worse, a finger) is pulled between the moving metal stairs and the grate or skirt panel, a press on the button may save life or limb. A person caught in an escalator is likely to panic, so the button must be prominent and easy to push--especially important because those least experienced with escalators, most likely to stick objects or fingers in the grate, and so most likely to get caught, are children. George R. Strakosch, Vertical Transportation: Elevators and Escalators 213 (2d ed. 1983). The buttons on this escalator are bright red to attract attention, a few inches off the floor to be within sight and reach of one entangled in the grate, recessed and covered by a half shield to prevent activation by falling packages and errant feet.

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The buttons are not behind doors, which might obstruct access by panicked or handicapped riders.

The injured clerk speculated that a small child pressed the button, which she portrayed as an attractive nuisance. Her expert, an experimental psychologist, testified that the buttons have four faults:

. They are bright red, which attracts small children.

. They are close to the ground, so a small child notices them.

. They are uncovered, so a child may investigate them.

. They are activated by a touch light enough for a small child.

For reasons best known to itself, Otis Elevator Company has confined its appeal to the argument that the district judge should have prevented the expert from testifying. I agree with my colleagues that the district judge did not abuse his discretion in admitting the testimony. Perceptual psychology (a part of experimental psychology) is not "junk science", and Professor Walker is no quack. He had a reasoned basis for his opinion, unlike the experts in Mid-State Fertilizer Co. v. Exchange National Bank, 877 F.2d 1333, 1338-40 (7th Cir.1989), and Richardson v. Richardson-Merrell, Inc., 857 F.2d 823, 829-32 (D.C.Cir.1988). See also E. Donald Elliott, Toward Incentive-Based Procedure: Three Approaches for Regulating Scientific Evidence, 69 B.U.L.Rev. 487 (1989).

In principle, a product could be unreasonably dangerous because its designers neglected to consider how children see things. A specialist in vision, illusion, and reaction is just the sort of person to assist on such questions. The manufacturer observes that expert testimony is inappropriate when the subject lies within the ken of laymen and insists that "everyone knows" red is attractive. Maybe, but much of the science of experimental psychology consists in demonstrating that what "everybody knows" is false. See Hans Wallach, On Perception (1976). The world looks flat but isn't. Lots of other things deceive the eyes. The lines separating the squares don't look parallel, but they are.

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That Otis does not consult psychologists when designing emergency buttons, which it thinks an impenetrable obstacle to expert testimony on the point, may show only why its design came to be dangerous. In principle.

Allowing an expert to tell the jury how children react to color is not the problem. The clerk was entitled to aid in making her case--if she had one. Why should escalator design be a...